In Light of International Human Rights Norms Brett G. Scharffs NOTEREF _Ref231205810 \h \* MERGEFORMAT
Suzanne Disparte NOTEREF _Ref231205810 \h \* MERGEFORMAT Family Law in a Multicultural Environment:
Civil and Religious Law in Family Matters ISFL Regional Conference
Bar-Ilan University School of Law
Centre for the Rights of the Child and the Family, Sha’arei Mishpat Law College
Tel-Aviv (and nearby locations), Israel
June 7-9, 2009
[Preliminary draft of June 5, 2009
Please do not cite or quote without permission of the authors]
A. You Never Wash in the Same River Twice
Speaking in June 2008 at a conference on constitutions and marriage at Bar-Ilan University School of Law, former Chief Justice Aharon Barak stated his opinion that the public discourse in Israel about marriage is very poor, and that the time has come for change. He also observed that Israeli family law is very complicated, and that the law is constantly in flux. Justice Barak noted that when it comes to family law in Israel, “you never wash in the same river twice.” NOTEREF _Ref231205810 \h \* MERGEFORMAT
As Americans and outsiders, who are not experts on family law, we do not propose to describe this river in detail, nor do we propose to prescribe how it should be channeled or maintained. We come with the perspective of comparative law scholars whose primary work is in the area of law and religion. It is with the hope that we will not be mere meddlers, and with a desire to contribute in some small way to the public discourse, that we approach this complex area with a certain fear and trembling and a rather acute case of vertigo.
This paper takes up Justice Barak’s invitation to broaden the conversation about the need in Israel to transition from an exclusively religious model for marriage and divorce to a model that includes civil marriage and divorce. The paper will do this by engaging in a comparative analysis of other legal systems that have undergone a transition from religious to civil marriage, and by considering the requirements and standards of international human rights norms. While legal outsiders such as us do not understand the complexities and nuances of Israeli family law, it may be possible to contribute in a modest way to the public discourse by focusing on comparative law and international human rights materials.
We focus here on three points of comparison: Turkey, the United Kingdom, and International Human Rights norms as articulated in the jurisprudence of the European Court of Human Rights.
In part II we briefly describe the legal framework governing marriage, divorce and family law in Israel. We will describe what we call the marriage conundrum that exists in Israel, where there is a framework of religious marriage for Orthodox Jews, certain Muslims, some Christians, and Druze, but no direct mechanism for civil marriage. This creates a familiar set of anomalies and problems.
Part III focuses on Turkey. Justice Barak noted that Israel’s marriage law was based upon legal structures that existed in Turkey, where the concern was with protecting the Muslim majority. There, family law was based upon Shari’a, but there were exceptions for Russians who were Orthodox Christians. In Turkey, the law governing marriage and divorce has transitioned to a civil system, whereas in Israel there is still no provision for civil law marriage. As justice Barak put it, “we are the old Turks.”
Part IV focuses on the United Kingdom. The United Kingdom is a useful point of comparison because it is a state that transitioned from a Christian model of marriage to a civil model, but where there is still a special role for the Established Church of England. There is also a historical and legal connection between Israel and the United Kingdom dating back to the days of the British Mandate.
Part V focuses on international human rights norms governing marriage and family life. The international law dimension of the paper will be based in large part on an analysis of the jurisprudence of the European Court of Human Rights. Over the past two decades, the ECHR has developed a sophisticated and complex jurisprudence on a large range of human rights issues, including issues involving family law. While this jurisprudence is quite respectful of national differences, and affords a significant “margin of appreciation” to national laws, the Court has set some clear benchmarks that nations must meet in order to comply with the terms of the European Convention on Human Rights. These provisions regarding family law matters are quite similar to those of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Looking to this jurisprudence can provide guidance to countries such as Israel that are seeking to find mechanisms for implementing a civil marriage option that meets international human rights standards.
Part VI contains a few observations and suggestions. This paper will not propose a solution to the marriage and divorce conundrums facing Israel. Its ambition is far more modest: to provide some comparative and international law analogues that may be helpful as Israel seeks to find solutions that will be uniquely responsive to the legal and cultural context that exists in Israel.
Part VII is a brief conclusion.
According to Justice Barak, the primary challenge facing family law is Israel is the absence of civil marriage. This results in many anomalies, based in large part upon Israel’s status as an immigrant nation. For example, with over one million immigrants from Russia in the past decade, Israel has seen an influx of newcomers many of whom are not by definition Jewish (because they have non-Jewish mothers). These individuals often serve in the Israeli armed forces, but are not able legally to marry under Jewish law.
A. The Legal Framework for Marriage and Family Law in Israel
Constraints of time and space allow only for the briefest summary of the legal framework governing marriage and family law in Israel. For purposes of present analysis, the key defining feature of the situation in Israel is the overlay of religious and secular law governing marriage and other family law matters. While the laws of marriage and divorce are governed exclusively by religious law, most other aspects of family law (including maintenance, child custody, adoption, and succession) are regulated by substantive secular law. NOTEREF _Ref231205810 \h \* MERGEFORMAT
B. The Court System in Israel
Israel has a well developed civil court system with municipal courts, magistrates’ courts, district courts, and the Supreme Court. NOTEREF _Ref231205810 \h \* MERGEFORMAT In addition, there is a network of tribal and religious courts recognized by the government. There are four officially-sanctioned religious court systems: Rabbinical (Jewish); Shari’a (Muslim), Christian, and Druze. NOTEREF _Ref231205810 \h \* MERGEFORMAT
The Rabbinical courts have exclusive jurisdiction over marriage and divorce of Jewish citizens and residents. NOTEREF _Ref231205810 \h \* MERGEFORMAT The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law of 1953 provides that “[m]arriages and divorces of Jews shall be performed in Israel in accordance with religious law” and that the rabbinical courts shall have exclusive jurisdiction in these matters over Jews who are residents or nationals of Israel. NOTEREF _Ref231205810 \h \* MERGEFORMAT
Muslim religious courts have exclusive jurisdiction over all matters of personal status of Muslims (whether citizens or foreigners subject to religious courts in their home jurisdictions), including adoption and inheritance. NOTEREF _Ref231205810 \h \* MERGEFORMAT There are Christian religious courts spread among nine recognized Christian denominations in Israel, which have exclusive jurisdiction over marriage, divorce, and alimony for their community members. NOTEREF _Ref231205810 \h \* MERGEFORMAT “Under the Druze Religious Courts Law the Druze courts were also granted exclusive jurisdiction over marriage and divorce of citizens. If granted consent by all parties, the courts also have jurisdiction over inheritance and personal status issues.” NOTEREF _Ref231205810 \h \* MERGEFORMAT
C. Issues and Anomalies
Justice Barak noted that there are two primary objections to recognizing civil marriage in Israel.
1. National Identity and Unity
The first reason is rooted in nationalism – the fear that if Israel recognizes civil marriage, Israel will lose is Jewish identity. NOTEREF _Ref231205810 \h \* MERGEFORMAT This argument, based upon unity and national identity, has been subject to harsh criticism. For example, Daniel Friedmann has argued, “The ‘unity’ represented by this approach is based upon two elements, compulsion and exclusion. Those who are regarded as belonging to the group are required to follow the religious rules; those who are either unwilling, unable, or unqualified under religious rules to participate are excluded.” NOTEREF _Ref231205810 \h \* MERGEFORMAT
The problems associated with compulsion, disqualification and exclusion are significant.
There are several categories of people who are precluded from marrying under Israeli law. NOTEREF _Ref231205810 \h \* MERGEFORMAT These include:
(i) Those who do not identify with any religion.
(ii) Those who belong to a religious community that is not recognized. NOTEREF _Ref231205810 \h \* MERGEFORMAT
(iii) Those who want to enter into a mixed marriage involving spouses who belong to different religious communities (unless the personal law of both parties recognizes such marriages). NOTEREF _Ref231205810 \h \* MERGEFORMAT
(iv) Those who belong to a recognized religious group who do not qualify for marriage within the rules of that group. NOTEREF _Ref231205810 \h \* MERGEFORMAT
Friedmann observes that the vast majority of Jews reside outside of Israel under systems of civil marriage. “If there is to be a split between those who live under such a system and those who recognize only religious marriage, then there must also be a schism between Jewish society in Israel and the Diaspora. Yet no one seriously maintains that there must be such a rift,” Friedman argues. NOTEREF _Ref231205810 \h \* MERGEFORMAT Anticipating this line of argument, Justice Barak noted that in America there are liberal policies regarding civil marriage, and one result has been that most children of Jews are not raised within the faith. NOTEREF _Ref231205810 \h \* MERGEFORMAT He cited a Rabbi who observed that while he had met many Reformed Jews, he had never met a grandchild of a Reformed Jew. So perhaps the concern about a loss of Jewish identity is valid.
2. Multiple Systems of Regulation
The second, related reason for opposing civil marriage is religious – if civil marriage is recognized, then with it comes recognition of civil divorce, which raises the prospect that divorce laws for religious and civil marriages will diverge. This raises particularly urgent issues with regard to the definition of illegitimacy.
Here the arguments for a unitary approach are even more tenuous, since the existing marriage system in Israel is already what might be described as a crazy-quilt of overlapping rules and jurisdictions and exceptions to the religious marriage rules. While the laws governing marriage and divorce are governed by religious law, other aspects of family law such as maintenance, child support, adoption and succession are governed by civil law. NOTEREF _Ref231205810 \h \* MERGEFORMAT
Even in the area of marriage and divorce, which is exclusively under the jurisdiction of religious law, a number of caveats must be noted. While the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law of 1953 provides that “Marriages and divorces of Jews shall be performed in Israel in accordance with religious law,” and that the Rabbinical Courts shall have exclusive jurisdiction over marriage of Jews, a variety of exceptions have emerged.
There are several possibilities available to those who are prohibited from marrying under religious law. These include: (1) renouncing an earlier marriage and seeking another that conforms to religious law; (2) in the case of mixed marriage, converting to Orthodox Judaism or having one’s partner convert; or (3) to circumventing the “official” system, by one of the following means: (i) entering into a civil marriage abroad; (ii) entering into a de facto marriage; (iii) having a “private” religious ceremony in Israel; NOTEREF _Ref231205810 \h \* MERGEFORMAT and (iv) having a non-Orthodox religious ceremony abroad. NOTEREF _Ref231205810 \h \* MERGEFORMAT
The Supreme Court has ruled that a couple married abroad, even if it is a mixed couple, is entitled to have its marriage registered in Israel. NOTEREF _Ref231205810 \h \* MERGEFORMAT The route of circumvention, option three described above, is the most common, which suggests that the “unity” the Rabbinical Courts Jurisdiction Law “was expected to create has not materialized.” NOTEREF _Ref231205810 \h \* MERGEFORMAT The legislature has responded by enacting special legislation to deal with de facto marriages, NOTEREF _Ref231205810 \h \* MERGEFORMAT as well as legislation enabling couples who do not belong to any recognized religious community to obtain a divorce. NOTEREF _Ref231205810 \h \* MERGEFORMAT
Thus, it is not really accurate to describe the existing system as one that is unitary or unifying. As the existing system has evolved to accommodate existing social realities, a number of exceptions to the rule of exclusive religious marriage have been made.
One result of this system is a common “jurisdictional race” to the courthouse between spouses eager to be the first to file suit in anticipation of divorce, at either the Rabbinical Courts (which men are said to generally prefer) and the Family Courts (which women are said to generally prefer). NOTEREF _Ref231205810 \h \* MERGEFORMAT
A. A Brief History and Legal Framework for Marriage and Family Law in Turkey
The official doctrine of the Ottoman Empire was the Hanafi school of Sunni Islam, and the empire operated under Shari’a (Islamic law). NOTEREF _Ref231205810 \h \* MERGEFORMAT However, codes of Western origin were periodically adopted and incorporated by the Empire throughout the Nineteenth Century. NOTEREF _Ref231205810 \h \* MERGEFORMAT These changes in the legal system, though made in the interest of modernization, were considered complementary and not contrary to Shari’a.1
By the early 1900s most of the laws governing the Empire had come to reflect Western models. NOTEREF _Ref231205810 \h \* MERGEFORMAT Family law was the single exception to this change, remaining entirely governed by Shari’a. NOTEREF _Ref231205810 \h \* MERGEFORMAT As one author observed, “[Family law] has always represented the very heart of the Shari’a and has been the most critical issue confronting the forces of tradition and change in the Muslim world.” NOTEREF _Ref231205810 \h \* MERGEFORMAT Nevertheless, this accumulation of changes in Ottoman law toward Western models laid a foundation for the success and sustainability of the Revolution of the 1920’s. NOTEREF _Ref231205810 \h \* MERGEFORMAT The result of that accumulation was that the adoption of the Swiss Civil Code as the governing law (the 1926 Code) of the new Turkish society was not a dramatic upheaval but simply the next step in a century-long process of legal reform. NOTEREF _Ref231205810 \h \* MERGEFORMAT Mahmut Esat Bozkurt, Justice of Minister at the time, argued in his “General Justification for the Proposed Law” that this departure from Shari’a was necessary to the progression of the Turkish Republic because “laws based on religion were inherently rigid, immutable, stagnant and incapable of meeting the changing needs of society.” NOTEREF _Ref231205810 \h \* MERGEFORMAT
As most other areas of law had already been codified under Western models prior to the Revolution, family law would presumably be the primary area of change under the 1926 Code. In reality, the Swiss Civil Code was modified and adapted so that family law under the 1926 Code was in many ways identical to or at least in harmony with family law under Shari’a, so the departure was not as abrupt as one might have thought. NOTEREF _Ref231205810 \h \* MERGEFORMAT
For example, the requirement under Islamic law that a widow must wait 300 days after her husband’s death or the divorce or annulment before remarrying appeared without alteration in the Turkish adaptation of the Swiss Code. NOTEREF _Ref231205810 \h \* MERGEFORMAT The family structure also remained patriarchal under the 1926 Code, requiring, for example, that women obtain permission from their husbands to work outside the home, and giving control over any property coming into the family to the husband though the wife maintained some right to property she brought into the family herself. NOTEREF _Ref231205810 \h \* MERGEFORMAT
Nevertheless, there were some changes within family law. The most fundamental change was the fact that religious ceremonies no longer had any legal validity. NOTEREF _Ref231205810 \h \* MERGEFORMAT A civil marriage must be performed or no legally binding marriage existed at all. NOTEREF _Ref231205810 \h \* MERGEFORMAT A civil ceremony required that a government official conduct a service with two witnesses present in which the two parties verbally agreed to marry. NOTEREF _Ref231205810 \h \* MERGEFORMAT Another significant change was the abrogation of polygamy. NOTEREF _Ref231205810 \h \* MERGEFORMAT Though permitted under Islamic law, polygamy was not widely practiced in Turkey by the early 1900s and was therefore not a point of great resistance when abandoned in the law. NOTEREF _Ref231205810 \h \* MERGEFORMAT Other significant changes included the provisions for divorce. Under Islamic law the husband had absolute and unilateral privilege regarding divorce and could dissolve a marriage without cause, simply by verbalizing his intent to do so. NOTEREF _Ref231205810 \h \* MERGEFORMAT The 1926 Code made divorce available only through the court system, thereby abolishing the husband’s option of mere verbalization, and also made spouses equally entitled to divorce. NOTEREF _Ref231205810 \h \* MERGEFORMAT The grounds for divorce were made applicable to both spouses on an equal basis. NOTEREF _Ref231205810 \h \* MERGEFORMAT This change was a tremendous step forward in the status and treatment of women.
Even with these changes, family law maintained its basic Islamic character under the 1926 Code. This combination of creating zeal among the people for a revolutionary, progressive law while actually maintaining much of Muslim law and custom is likely a large part of why the Turkish introduction of the Swiss Code was successful. NOTEREF _Ref231205810 \h \* MERGEFORMAT It is questionable whether the 1926 Code would have been accepted had the change in family law been too drastic or fundamentally offensive to Islam in any way. NOTEREF _Ref231205810 \h \* MERGEFORMAT After all, though the Revolution claimed to cast off the Islamic nature of the Ottoman past in the name of making Turkey a modern and civilized nation NOTEREF _Ref231205810 \h \* MERGEFORMAT , religious identity with Islam was, and remains, a prominent feature of Turkish identity, and that religious identity did not become noticeably less important in practice even with the changes in the law. NOTEREF _Ref231205810 \h \* MERGEFORMAT Indeed, one of the reasons for adopting the Swiss Law given in the Justification was that it would operate well in a largely homogenous republic such as Turkey. NOTEREF _Ref231205810 \h \* MERGEFORMAT
Indeed, for years after the adoption of the Swiss Code, the majority of Turkish people, particularly in rural areas, did not obtain a civil marriage because they saw no need. NOTEREF _Ref231205810 \h \* MERGEFORMAT Many felt that a religious ceremony was sufficient and even more respectable than a civil marriage. NOTEREF _Ref231205810 \h \* MERGEFORMAT In addition, dissolution of a marriage through a religious divorce could be done easily and respectably, whereas civil divorce required for civil marriages was expensive and more complicated. NOTEREF _Ref231205810 \h \* MERGEFORMAT Other inconvenient obstacles also contributed to the low number of civil marriages, such as the necessity of a birth certificate or the requirement of a physical examination when applying for a civil marriage. NOTEREF _Ref231205810 \h \* MERGEFORMAT This failure to obtain a civil marriage perhaps reflected a failure to understand the legal significance of civil marriage within the reformed legal system and the fact that no marriage was valid in the eyes of the state unless it conformed to civil marriage requirements. It was in the wake of World War II and the Korean War that civil marriage began to take root among the Turkish people. NOTEREF _Ref231205810 \h \* MERGEFORMAT Wives of servicemen were eligible for a “separation allowance,” and many who had married only in a religious ceremony now discovered that as far as the state was concerned, they had never been married and must be married civilly in order to claim the allowance. NOTEREF _Ref231205810 \h \* MERGEFORMAT Modern tax benefits available to married persons also encouraged increased recognition of the legal significance of civil marriage. NOTEREF _Ref231205810 \h \* MERGEFORMAT
By 1955, a study of one village in rural Turkey revealed that 91% of married couples had had both a religious ceremony and a civil ceremony. NOTEREF _Ref231205810 \h \* MERGEFORMAT The conductor of the study, Ibrahim Yasa, observed that “Apparently the girl’s family wants the civil marriage so that in case of divorce or separation their daughter can claim her rights.” NOTEREF _Ref231205810 \h \* MERGEFORMAT However, in the eyes of the community it was still the religious ceremony that morally united the betrothed. NOTEREF _Ref231205810 \h \* MERGEFORMAT A second study of the same village fourteen years later in 1969 showed that the religious ceremony and the civil ceremony had now come to be viewed as equal in importance. NOTEREF _Ref231205810 \h \* MERGEFORMAT Today, couples wishing to celebrate their marriage with a religious ceremony typically do so after they have already completed the requisite civil ceremony. NOTEREF _Ref231205810 \h \* MERGEFORMAT
One of the difficulties created by two decades of marriages not registered with the state was that of illegitimate children. Recognizing this problem, but believing that the people simply needed a transitional period to adapt to the new system of law NOTEREF _Ref231205810 \h \* MERGEFORMAT , the government made provision for the legitimization of children during the transition from Islamic law to Code by passing legislation with such effect in 1933, 1945, and 1950. NOTEREF _Ref231205810 \h \* MERGEFORMAT
The years since the establishment of the 1926 Code have shown the Code to be stable but moldable. Attempts to revise the code in 1951, 1971, 1974, 1976 and 1984 were rejected by parliament. NOTEREF _Ref231205810 \h \* MERGEFORMAT In 1998 a new draft finally received approval and the proposed law replaced the 1926 Code in 2002. The changes made in the Civil Code of 2002 were primarily in the area of family law and aimed at creating greater gender equality as well as replacing Arabic words for Islamic terms in the Code with Turkish words. NOTEREF _Ref231205810 \h \* MERGEFORMAT